Created: August 06, 2022 08:00
Decision: Assistant Justice Hugh Southey (Photograph provided)
A commission of inquiry set up to investigate the land grab acted illegally when it changed its own terms of reference, according to a Supreme Court ruling.
Associate Justice Hugh Southey ruled that the commission had “misguided” in limiting the scope of its mandate and subsequently refused to hear evidence from at least one plaintiff.
The Historic Land Losses Commission of Inquiry was set up by David Burt, Prime Minister, in 2019 to look into historic thefts of property and “identify any person or entity responsible for these historic losses of citizens’ property. “.
But soon after it was convened, the seven-member panel drafted its own terms of reference, redefining the cases it would investigate.
According to Raymond Davis – who filed two complaints with the commission alleging he had lost property due to unethical, systemic and improper practices – this was beyond the commission’s authority.
In a complaint to the CoI, Mr Davis said he signed a contract with the Bermuda Housing Corporation in the 1980s to renovate its property portfolio. He alleged the company reneged on the contract after he ran for parliament as an independent candidate. As a result, he was forced to sell his property at a loss.
In a second complaint, Mr Davis – also known as Khalid Wasi – said he was one of 87 black businessmen who had been ordered by banks to repay loans before payments were due .
At a judicial review hearing last month, Mr Davis said his experiences were prime examples of cases the CoI had been set up to investigate.
He said, “I gave them bundles of evidence. They were supposed to investigate and never did.
Instead, the CoI ruled that his complaints did not fall within its jurisdiction because they were commercial in nature.
In his ruling yesterday, Judge Southey agreed with Mr Davis and fellow candidate Myron Piper that the CoI had acted outside of his authority.
In a hearing held via Zoom, the judge said: ‘I have also found that the commission erred in the scope of this commission in a way that was potentially material in the case of Mr. Davis. There has been illegality in the processing of your file.
Justice Southey acknowledged that the Prime Minister’s terms of reference had been drafted “in a way that is far from perfect”.
But he added: ‘That doesn’t necessarily mean they’re faulty though.
“While I accept that the commission of inquiry had the right to consider and interpret the meaning of its terms of reference at an early stage… that does not mean that the commission had the power to determine its own terms of reference. He must correctly interpret the terms of reference assigned to him.
“If it was up to the commission to determine the meaning of its own mandate, it would undermine the division of responsibilities.
“It is up to the appointing authority to determine what the commission should investigate. The appointing authority establishes terms of reference which must have a legally correct single meaning which the commission must then respect.
“It seems to me that it is clear that there was concern that land had been unjustly lost as a result of the actions of the ‘rich, powerful and connected’. Furthermore, the concern was to ensure that as many such cases as possible were examined.
“It should be noted, in particular, that the obligation is to conduct a ‘full’ investigation. There is no discretion to investigate only certain matters that fall within the mandate.
Judge Southey accepted Mr Davis’ argument that his complaints should not have been dismissed on the grounds that they were commercial in nature.
He said: “It seems to me that the terms of reference require an investigation of any case where it is alleged that there has been a power imbalance in the past which has caused loss of land.
“The Board of Inquiry erred in apparently concluding that Mr. Davis’s cases fell outside the scope of the mandate on the basis that they amounted to a trade dispute. There is no reason in principle why a commercial dispute cannot be linked to an imbalance of power.
The commission went way over budget
At the judicial review last month, lawyers for the commission of inquiry said it was forced to narrow the scope of its investigations due to time and financial resource constraints.
The Commission of Inquiry was established on November 1, 2019 with an approved budget of $325,000 and a 40-week deadline to complete its work.
The CoI referred to the “limits of time, financial and personnel resources provided to it for research matters”.
But as Judge Southey noted in his decision yesterday, these limitations have either been ignored or extended.
The judge quoted part of an affidavit from Wayne Perinchief, vice-chairman of the commission, who wrote: [terms of reference] or the extent of the investigation of such claims. The [CoI] actually went over budget and the cost exceeded $1 million.
Mr Davis said last night the decision was a victory for justice.
He said: “The commission got it wrong. They acted illegally and so did we.
He added that the review was only the first step in making his complaints about land grabbing heard.
“Obviously the Board of Inquiry has now been disbanded, so I can’t present my case to them,” he said.
“I need to find out what my next steps should be and what court I can go to to have these cases heard.”